IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31031 of 2009(Q)
1. M.G.GEORGE MUTHOOT, S/O.LATE M.GEORGE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. DIRECTOR GENERAL OF POLICE,
3. INSPECTOR GENERAL OF POLICE,
4. SUB INSPECTOR OF POLICE,
5. CENTRAL BUREAU OF INVESTIGATION,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :21/01/2010
O R D E R
S.R.Bannurmath, C.J.
&
Thottathil B.Radhakrishnan, J.
------------------------------------------------------
W.P(C).No.31031 of 2009
&
W.P(C).No.37407 of 2009
------------------------------------------------------
Dated this the 21st day of January, 2010
JUDGMENT
The role of a victim, including his family members, of a
heinous crime, during investigation and trial in the present
criminal justice delivery system and incidentally, the role of
higher/superior courts in respect of investigation at the
initial stage of filing of final report by the investigating
agency are the subject matter of this writ petition.
2. The writ petitioner, unfortunate father of deceased
Paul in homicidal attack and death, has approached this
Court under Article 226 of the Constitution of India seeking a
direction for investigation in Cr.No.197/09 of Nedumudi
Police Station, Alappuzha by an independent investigating
agency like Central Bureau of Investigation.
WP(C).31031 & 37407/09 2
3. Taking into consideration the fact that investigation in
this case is complete and final report (charge sheet) is filed
by the investigation before the Magistrate, the brief and
necessary facts as per prosecution, for our purpose, are as
follows:
4. The petitioner, M.G.George Muthoot along with his
three sons including deceased Paul are running one of the
largest business groups in India hailing from Kerala, having
more than 1000 branches all over India with assets
estimated at more than Rs.20,000 Crores. It is undisputed
that though originally this group was engaged in Gold loan
business, over the years has entered into various other
businesses.
5. It is stated that the deceased, based in Delhi till April,
2009, had come down to Kerala in May, 2009 to take charge
of construction and plantation division.
6. On the night of 21.08.2009 at about 12.30 midnight
the family was informed by the driver by name Shibu (driver
of Paul’s car) that Paul was brutally attacked and lying in
WP(C).31031 & 37407/09 3
pool of blood.
7. The eldest son of petitioner rushes to Alappuzha
Medical College Hospital, finds Paul dead and also learns
that another person Manu, alleged to be travelling with
deceased Paul is also injured and admitted to hospital in
unconscious state.
8. According to investigation, at 3.00 AM on the basis of
first information given by the driver, Shibu a case in Crime
No.197/2009 is registered at jurisdictional police station at
Nedumudi and investigation is taken up and now final report
(charge sheet) is also filed.
9. In order to understand the case, it is necessary to note
the contents of the first information (original is in malayalam
and we have looked into the uncontroverted translation in
English as one of us (S.R.Bannurmath, C.J) is not conversant
with Malayalam).
10. The gist of the translated first information reads as
follows:
“Deposition given by Shibu Thomas, 32 years,
residing at rented house Siva Kripa,
WP(C).31031 & 37407/09 4
Chakkamadom Line, Kaloor-kathrikadavu Road,
Ernakulam coming from Vandanath house, IXth
Ward, Kanjiyar Panchayat, Ayyappankovil Village,
Udumbanchola Taluk, Idukki District to P.A.
Alaphonse, Sub Inspector, Nedumudi Police
Station at 03.00 on 22/8/09.
I am working as a driver at Cardamom County
Hotel of Muthoot at Thekkady. Now I am working
at Muthoot Office at Kadavanthara Ernakulam. 3
persons known to Paul sir came from Trivandrum
to see the Executive Director Paul sir in KL01-AS-
8407 Ford Endeavour black coloured Car.
Thereafter Paul sir along with them from Avenue
Regent Hotel to the flat and from there went with
them in the car they came and went to
Mararikulam the property taken for the resort. All
of them consumed liquor there. About 11.30 at
night sir and two persons with him got into the
car they came. Since one person consumed too
much liquor hence he was taken the Scorpio car
being No.KL6-D-3174 of the sir driven by me. Sir
came in the car they came with, to Pamba Villa
resort at Chambakulam. I was directed to take the
key of said resort from the office of Muthoot
Backwater Cruise (MBC) below the Pallathuruthy
bridge. I drove the vehicle from Mararikulam.
When I came to Pallathuruthy Office and asked
for the key they said that as per the call of sir the
keys were taken there. So I went by vehicle to
Chambakulam following the sir. Sir was going at
high speed. I went after him. When I reached
about 2 kms east of Pallathuruthy bridge.
I saw the car driven by the sir parked in the left
side of the road and I stopped the car. Then I saw
that one tempo traveler and about 10 to 15
WP(C).31031 & 37407/09 5
persons are surrounding the car of the sir. On
seeing stopping my vehicle they suddenly get into
the tempo traveler and drove towards Alappuzha
side. Then I and the person with me got down
from the car. Then the person with me said that
Paul sir is lying there, and I and the person with
me lifted the Paul sir and the Paul sir was
drenched in blood. And the sir was taken to the
car driven by me the Scorpio KL6-D-3174. Deep
wounds were seen below the neck and back of
the sir. We heard a murmur sound from the road
side. We saw that one person along with the sir in
the car was trying to get up of the marshy land on
the northern side of the road. We helped him up.
He was taken in my car and suddenly took to
MCH Alappuzha. The person with me and the
other person along with the sir came in his
vehicle behind me. When we reached Alappuzha
SD college they overtook me and went towards
south through NH. Even though I sounded my
horn and indicator they drove off towards south
without stopping. I reached with Paul sir and the
other person at the MCH Alappuzha. On reaching
hospital, the doctor examined and said that the
Paul sir is dead. Then the time was 12.50. The
dead body was transferred to mortuary. The
accompanying person was admitted there. He
was murdered by a group of persons with some
deadly weapon stabbing and cutting with
intention to kill the sir out of vengeance. The
group consisting of 10 to 15 persons. All of them
wear pants and shirts. All of them were
youngsters. I can recognize some of them. The
occurrence was at about 12.15 night on 21.08.09.
The car in which I took the sir is at MCH College
Alappuzha. The place of occurrence is at about 3
= Kms.”
WP(C).31031 & 37407/09 6
11. After the registration of the case, investigation
procedure like inquest of the dead body of Paul is carried out
so also post-mortem is carried out. Statements of various
witnesses are recorded and in all, as per final report, 25
persons are accused of having some role in the undisputed
homicidal attack and death of Paul.
12. It is interesting to note, as this investigation is going
on, on the very next date of incident, i.e., 23.8.2009, it
appears, the Home Minister informs media that investigation
(?) so far carried out reveals involvement of “quotation
gang” and details of investigation will be disclosed by the
investigating agency on the next day.
13. On 24.8.2009, the Inspector General of Police, holds
press-media conference and reveals entire probable history
as to how and why Paul was murdered.
(At the request of the petitioner and with consent of
learned Director General of Prosecution for State, we have
seen the vedio recording of this press conference in the
WP(C).31031 & 37407/09 7
open court and as the statement of the Inspector General of
Police was in Malayalam, perused the undisputed translation
also.)
14. It is somewhat shocking to note that when
investigation started rolling hardly 24 hours after the murder
of Paul, accused yet to be even identified, the Inspector
General who is neither the investigating officer nor in charge
of investigation, in the press/media conference, gives vivid
picture of how and why the deceased was attacked by 22
persons; how many vehicles were involved; the details of
some persons accompanying the deceased in the car and
also some persons following in other cars. He also
emphatically says that some of the alleged accused were
members of quotation gang and A24 – Omprakash and A25
Rajesh – are notorious and wanted criminals who were with
the deceased in the car on the fateful night. He also speaks
about motive aspect. According to him, Paul was driving a
Ford Endeavour car, which hit a motorcycle driven by one Aji
at Pallathuruthy and after the accident, without stopping
WP(C).31031 & 37407/09 8
Paul sped away; few people (some of the accused –
members of quotation gang) travelling in a tempo traveller
who came to spot and after helping the motorcycle rider,
chased Paul’s car and at a distance of 2 = km thereafter
found Ford Endevour parked by road side; they parked
tempo traveller and questioned Paul’s conduct in not
stopping after accident with motorcycle and after verbal
exchange, one of them stabbed Paul; and the passengers in
tempo traveller were all drunk and have stabbed Paul under
sudden alcoholic intoxication (?). He further states that the
assault was due to sudden provocation by deceased himself.
He even describes the murder weapon as ‘S’ shaped sharp
weapon.
15. This press/media statement by a responsible higher
police officer of the rank of Inspector General, giving minute
details of the incident including involvement of two tempo
travellers (by some of the accused), Ford Endeavour driven
by deceased Paul with two or one person (doubtful) and also
a Scorpio and one Santro belonging to quotation group of
WP(C).31031 & 37407/09 9
Changanassery team, another Scorpio belonging to
deceased Paul, as well as definite statement as to who were
in which car, the ‘S’ shape of weapon used when admittedly
no autopsy was conducted and especially, even motive, that
is, sudden intoxication reaction or sudden provocation by
the deceased resulting in one of the accused stabbing the
deceased, etc. when the first information of Shibu, the driver
of Paul (alleged to be driving another vehicle) etc, that too,
within short time of incident does not even indicate at this
definite findings of the Inspector General of Police and when
investigation had just begun, appears to be strange and has
created doubt in the mind of not only the father of deceased
(petitioner) but also with media people and in turn, public.
16. According to petitioner, due to shock of losing his
grown up son and as investigation was yet to be completed
and having faith in police machinery, he and family
members watched and waited for some time, later seeing
the strange way investigation is proceeding and especially
after filing of final report, as the case put forth by the
WP(C).31031 & 37407/09 10
investigation agency is full of inconsistencies, improbabilities
and doubtful in nature and in spite of his repeated requests
to probe properly as nothing was done, he is forced to
approach this Court invoking Article 226 of the Constitution
of India jurisdiction seeking investigation by another
independent agency like Central Bureau of Investigation.
17. This petition is vehemently opposed by the
respondent-State through learned Director General of
Prosecution. At the outset relying upon the pronouncements
of Apex Court, it is contended that the law regarding
jurisdiction and power of police carrying out investigation is
well settled. He submits that as investigation is absolute
power of police, neither the courts can intervene nor direct
the police to reinvestigate or investigate in a particular way.
He submits that the present investigating agency has done
its best in investigating the crime, after going through all the
possible angles and the guilt of the accused has to be
proved only during trial and as such, mere suspicion and
doubt by looking into or probing the evidence so far
WP(C).31031 & 37407/09 11
gathered would hamper the trial of the accused detected or
said to be involved in the crime. It is contended that mere
discrepancies here and there emerging from various
statements of witnesses recorded during investigation, are
not sufficient to hold that investigation is faulty or false. He
also contended that mere doubts expressed by the victim’s
father (petitioner) or possible theory put up by him, cannot
be basis for interference by courts at this stage. He further
drew our attention to the provisions of Delhi Special
Establishment Act, especially Section 6, to contend that the
Delhi Special Police (CBI) cannot conduct investigation
outside its normal jurisdiction unless the concerned State
(where crime has taken place, case is registered and
investigation carried out by local police) gives its consent. It
is submitted that as financial implications like liabilities of
payment of compensation to victim or his family, defending
prosecution for malicious investigation which may be filed
by accused after acquittal by a court, would be with State, it
is not proper or justifiable for this Court to order new
WP(C).31031 & 37407/09 12
investigation or fresh probe by CBI. It is argued that even
before this Court, there is absolutely no material placed on
record or no clues are even indicated by the petitioner to
show that the investigation so far carried out is either faulty
or not proper or malafide and in the absence of any definite
material as to any other person being involved in the crime,
only on the basis of mere suspicion or surmises, it is not
open for this Court to entrust the investigation to CBI. On
these, among other grounds, it is contended that the writ
petition and prayers therein are not maintainable.
18. Incidentally it is to be noted that after filing of the
final report by the police before the jurisdictional Magistrate,
the Magistrate noted certain discrepancies and suspicion
about the investigation and as such by order dated
8.12.2009 held that there are many missing links and certain
areas are to be unearthed and further investigation is
required and as such investigation is incomplete. Hence,
returned the final report and directed police to complete
investigation properly. This order of the Magistrate is
WP(C).31031 & 37407/09 13
challenged before this Court in WP(C).No.37407 of 2009 on
various grounds questioning the limited jurisdiction of
Magistrate under the Code of Criminal Procedure over
investigation and illegality of return of final report with
further direction to probe further.
19.Since the contentions in both the cases are interlinked
we have heard them together.
20. We have heard both petitioner’s counsel, learned
Director General of Prosecution and Standing Counsel for CBI
in detail.
21. Before discussion of rival contentions on the merits of
the case, we would like to address ourselves on the legal
issues raised.
22. We are in full agreement with learned Director
General of Prosecution on following legal aspects well
established by various pronouncements of the Honourable
Supreme Court:
(a) It is statutory obligation and duty of the police to
WP(C).31031 & 37407/09 14
investigate into crime and the courts normally ought not to
interfere and guide the investigation agency as to in what
manner the investigation should be proceeded (emphasis by
us).
(b) that investigation of a case and further investigation
if required is the prerogative of the investigating agency;
and
(c) that mere suspicion or doubt will not be sufficient to
unsettle the investigation so far carried out, by either
directing for further probe or reinvestigation by same or
another investigating agency like CBI.
23. We have perused various pronouncements relied
upon by both the sides.
24. At the outset, as we have no dispute as to the law
laid down to the aforesaid position and though we are aware
of effect on the present investigation by looking into some
factual positions, for the reasons stated below we deemed it
proper to look into the investigation material for limited
purpose and wherever necessary to find the assertions of
WP(C).31031 & 37407/09 15
either side is correct or not.
25. It is to be noted that maintaining law and order in a
State is the constitutional obligation of the State. No doubt,
investigation of an offence is the field exclusively reserved
for the executive through the police department, the
superintendence over which vests in the State Government.
If an offence is alleged to have been committed, it is the
bounden duty of the executive to investigate into the crime
and bring the offender to book. The concept of punishment
is deterrent both for the actual criminals involved and also
to send warning to those who are nurturing idea of
committing similar crimes. There cannot be any dispute that
unless the citizens feel safe, assured about criminal justice
by proper investigation apprehending and punishing the real
criminals, the State obligation is not discharged.
26. If one looks into history of criminal justice delivery
system in India especially after independence, the picture is
very bleak and sorrowful. The conviction rate in India is
hardly 30 to 40%. These figures, when compared to other
WP(C).31031 & 37407/09 16
nations like USA, UK, France and Germany where conviction
rate is almost 80 to 90%, would definitely indicate that
something is wrong somewhere in our criminal justice
delivery system.
27. It cannot be disputed that our present day criminal
justice delivery system borrowed from British system is
partially responsible for the low rate of convictions, increase
in crimes and people losing faith in the efficacy of the
system. The age old method of investigation, too many
restrictions in investigations, appreciation of evidence by the
courts with blinkers and with narrow compartmentalised
minds, stretching the theory of proof beyond reasonable
doubt too far, over-importance given to right of silence to
the accused, overzealous attempt to protect only rights of
the accused during trial, inordinate delays in completing
investigation and trial, have all, in our view, contributed to
the problems. It is again the undisputable bitter truth that as
people are losing faith in the system, they are leaning
towards taking law in their hands, sometimes even
WP(C).31031 & 37407/09 17
engaging/hiring goondas or anti-social criminals, who are
now given an honourable title “quotation and protection
agencies”.
28. Noting all these facts and hue and cry raised by
intellectuals, jurists, NGOs and public, in the year 2000, the
Government of India constituted a committee headed by an
intellectual giant in legal field Dr.Justice V.S.Malimath to
suggest and recommend on reforms of the criminal justice
system especially for simplification of judicial procedure and
practice with main object of restoring the faith and
confidence of common man in the criminal justice system,
by protecting innocent and victims and by unsparingly
punishing the real culprits. The report of the committee with
recommendations, was submitted to Government of India in
the year 2002. Unfortunately, except here and there, none
of the valuable suggestions have been considered or
implemented.
29. Be that as it may, the fact of our reference to this
report in the present context is regarding the plight of a
WP(C).31031 & 37407/09 18
victim and his family members.
30. In the present criminal justice delivery system,
except for filing a first information, giving evidence in court
and sometimes getting compensation, there is absolutely no
major role for the victims including family members
especially in heinous crimes like murder, rape etc.
31. As stated and emphasised by Dr.Justice V.S.Malimath
Committee, “quest for truth” should be the motto, guiding
star and fundamental duty of the investigation agency and
the courts. But unfortunately as commented by the
Committee, the basic need is to have well trained, well
equipped and more importantly, independent investigating
agency. Secondly, if criminal proceedings have to be fair for
both the parties, i.e., victim and the accused, it is not
sufficient only to protect innocents from punishment or
punishing the culprits, the aim and object must be basically
to give justice to the victim of the crime also. But,
unfortunately, as noted above, once criminal investigation
starts rolling, the victim has no major role to play to get
WP(C).31031 & 37407/09 19
justice for the wrong done to him/her. As observed by
the Committee,
“The investigation process is exclusively a police
function and the victim has a role only if the police
consider it necessary. Though it appears there are
administrative instruction given by police
department of certain States to give information on
progress of investigation to the victims when asked
for. Otherwise till police final report is filed and
many times even thereafter the victim does not
know what is happening.”
32. Though we find that as victims of crime are
important players in criminal justice administration both as
complainant/informant and as a witness, it is unfortunate
that despite the system being heavily dependent on the
victim, criminal justice has been concerned only with the
offender and his interest almost subordinating or
disregarding the interests of victim.
33. Honourable Justice K.T.Thomas in the case of State
of Gujarat v. High Court of Gujarat reported in 1998(7)
SCC 392 observed that “criminal justice would look hollow if
justice is not done to the victim of crime”.
34. In our view, the recommendations made by
WP(C).31031 & 37407/09 20
Dr.Justice V.S.Malimath Committee in this regard requires
immediate implementation. Some of the recommendations
of the committee like active participation of victim in the
progress during investigation especially in heinous crimes,
his participation at the time of consideration of grant of bail
and being represented by a counsel even during trial are
worth considering.
35. As such, we hold that the victim has every right to
question the correctness of the investigation, especially in
heinous crimes, indicating not imaginary but definite
suspicion about the veracity of the investigation.
36. This takes us to the next question, as to the
jurisdiction of the superior courts issuing direction taking
away investigation from local police to entrust investigation
to an independent agency like CBI and at what stage.
37. The learned counsel for the petitioner and learned
Director General of Prosecution have relied upon number of
pronouncements of the Honourable Supreme Court for and
against. On detailed perusal of these pronouncements, one
WP(C).31031 & 37407/09 21
thing is certain. The superior courts have to decide such
question based on facts and circumstances of each case and
no straight jacket formula can be made. In fact, the latest
unreported pronouncement of the Honourable Supreme
Court in W.P(C).No.6 of 2007 in the case of Rubabuddin
Sheikh v. State of Gujarat has considered in detail earlier
pronouncements reported in R.S.Sodhi v. State of U.P
(AIR 1994 SC 38), Kashmeri Devi v. Delhi
Administration (1988 (Supp) SCC 482) and Ramesh
Kumari v. State (NCT Delhi) (2006(2) SCC 677), Inder
Singh v. State of Punjab [(1994)6 SCC 275], Gudalure
M.J.Cherian v. Union of India [(1992)1 SCC 397], P & H
High Court Bar Association v. State of Punjab (AIR
1994 SC 1023), Vineet Narayan v. Union of India
[(1996)2 SCC 199] Union of India v. Sushil Kumar Modi
[(1998) 8 SCC 661], Rajiv Ranjan Singh ‘Lalan’ (VIII) v.
Union of India [(2006)6 SCC 613], Hari Singh v. State of
U.P [(2006)5 SCC 733], Aleque Padamsee v. Union of
India [(2007)6 SCC 171] and M.C.Mehta v. Union of India
WP(C).31031 & 37407/09 22
[(2008)1 SCC 407] and observed thus:
“This decision (R.S.Sodhi’s case) clearly helps the
writ petitioner for handing over the investigation to
the CBI Authorities or any other independent
agency. It is an admitted position in the present
case that the accusations are directed against the
local police personnel in which High Police officials
of the State of Gujarat have been made the
accused. Therefore, it would be proper for the writ
petitioner or even the public to come forward to say
that if the investigation carried out by the police
personnel of the State of Gujarat is done, the writ
petitioner and their family members would be highly
prejudiced and the investigation would also not
come to an end with proper finding and if
investigation is allowed to be carried out by the
local police authorities, we feel that all concerned
including the relatives of the deceased may feel that
investigation was not proper and in that
circumstances it would be fit and proper that the
writ petitioner and the relatives of the deceased
should be assured that an independent agency
should look into the matter and that would lend the
final outcome of the investigation credibility,
however faithfully the local police may carry out the
investigation, particularly when the gross
allegations have been made against the high police
officials of the State of Gujarat and for which some
high police officials have already been taken into
custody.
It is also well known that when police officials of the
State were involved in the crime and in fact they are
investigating the case, it would be proper and
interest of justice would be better served if the
investigation is directed to be carried out by the CBI
WP(C).31031 & 37407/09 23
Authorities, in that case CBI authorities would be an
appropriate authority to investigate the case. In
Ramesh Kumari vs. State (NCT Delhi) & Ors. [2006
(2) SCC 677], this Court at Paragraph 8 observed:
“…… We are also of the view that since there
is allegation against the police personnel, the
interest of justice would be better served if
the case is registered and investigated by an
independent agency like CBI”.
In Kashmeri Devi v. Delhi Administration, (supra),
this Court held that in a case where the police had
not acted fairly and in fact acted in partisan manner
to shield real culprits, it would be proper and
interest of justice will be served if such investigation
is handed over to the CBI* authorities or an
independent agency for proper investigation of the
case. In this case, taking into consideration the
grave allegations made against the high police
officials of the State in respect of which some of
them have already been in custody, we feel it
proper and appropriate and in the interest of justice
even at this stage, that is, when the charge sheet
has already been submitted, the investigation shall
be transferred to the CBI Authorities for proper and
thorough investigation of the case. In Kashmeri
Devi (supra), this Court also observed as follows:-
“Since according to the respondent charge-
sheet has already been submitted to the
Magistrate we direct the trial court before
whom the charge sheet has been submitted to
exercise his powers under Section 173(8)
Cr.P.C. to direct the Central Bureau of
Investigation for proper and thorough
investigation of the case. On issue of such
direction the Central Bureau of InvestigationWP(C).31031 & 37407/09 24
will investigate the case in an independent
and objective matter and it will further submit
additional charge sheet, if any, in accordance
with law”.
In Gudalure M.J.Cherian (supra), in that case also the
charge sheet was submitted but in spite of that, in view
of the peculiar facts of that case, the investigation was
transferred from the file of the Sessions Judge,
Moradabad to Sessions Judge, Delhi. In spite of such fact
that the charge sheet was filed in that case, this Court
directed the CBI to hold further investigation in spite of
the offences committed. In this case at Page 400 this
Court observed:
“………………… The investigation having been completed
by the police and the charge sheet submitted to the
court, it is not for this court ordinarily to reopen the
investigation specially by entrusting the same to a
specialized agency like CBI. We are also conscious that
of late the demand for CBI investigation even in police
cases is on the increase. Nevertheless – in a given
situation, to do justice between the parties and to instill
confidence in the public mind – it may become
necessary to ask the CBI to investigate a crime. It only
shows the efficiency and the independence of the
agency”.
In this connection, we may reiterate the decision of this
Court in the case of P & H High Court Bar Association
(supra) strongly relied on by the learned senior counsel
appearing for the writ petitioner. A reference of the
paragraph of the said decision on which reliance could
be placed has already been made in Para No.32 from
which it would be evident that in order to do complete
justice in the matter and to instill confidence in the
WP(C).31031 & 37407/09 25
public mind, this court felt it necessary to have
investigations through the specialized agency like the
CBI.
Therefore, in view of our discussions made hereinabove,
it is difficult to accept the contentions of Mr.Rohatgi
learned senior counsel appearing for the State of
Gujarat that after the charge sheet is submitted in Court
in the criminal proceeding it was not open for this court
or even for the High Court to direct investigation of the
case to be handed over to the CBI or to any
independent agency. Therefore, it can safely be
concluded that in an appropriate case when the court
feels that the investigation by the police authorities is
not in the proper direction and in order to do complete
justice in the case and as the high police officials are
involved in the said crime, it was always open to the
court to hand over the investigation to the independent
agency like CBI. It cannot be said that after the charge
sheet is submitted, the court is not empowered, in an
appropriate case, to hand over the investigation to an
independent agency like CBI.
Keeping this discussion in mind, that is to say, in an
appropriate case, the court is empowered to hand over
the investigation to an independent agency like the CBI
even when the charge sheet has been submitted, we
now deal with the facts of this case whether such
investigation should be transferred to the CBI
Authorities or any other independent agency in spite of
the fact that the charge sheet has been submitted in
court”.
38. This detailed discussions and law indicated by Apex
Court, in our view, fully answers against the objections of
WP(C).31031 & 37407/09 26
the State and in favour of the petitioner. We hasten to add
that merely because the Honourable Supreme Court
observed and permitted investigation by CBI, the same
cannot be and should not be the only yardstick.
39. Having noted the various pronouncements we
have still ventured into further probe of investigation, only to
satisfy ourselves as to whether investigation is done
properly or not.
40. As we observed earlier, the superior court has a
duty to go through investigation material without probing
into deep to find out prima facie whether investigation is
going in proper direction or not and if not, what steps to be
taken.
41. As such we have perused the entire investigation as
revealed from final report and accompanying records, for
the limited purpose to find out whether there is any genuine
doubt or suspicious circumstances as put forth by the
petitioner in the investigation and our findings are as
WP(C).31031 & 37407/09 27
follows:
(a) As already noted, the incident in question has taken
place in the midnight around 12.30 of 21.8.2009. The first
information is recorded at 3 AM and the first informant is
Shibu Thomas, driver of the deceased Paul. According to first
information, in the fateful night, the deceased along with his
three friends (not named but now identified as Manu CW2,
Omprakash A24 and Rajesh A25) from Trivandrum went to
various places/hotels in a black Ford Endeavour car KL-01-
AS-8407 and consumed liquor at one or two places and went
to Mararikulam resort and again consumed liquor. At that
place, as one of the friends (Manu) was in highly imbibed
state, deceased Paul drove away with two persons
(Omprakash A24 and Rajesh A25) in Ford Endevour car and
Shibu the driver was asked to follow and bring (Manu) in
Scorpio car. At Pamba Villa resort it is stated that Paul asked
the driver to get the keys of rooms of Pamba Villa resort
from the office of Muthoot Backwater Cruise near
Pallathuruthy bridge. As such it is stated that Shibu went to
WP(C).31031 & 37407/09 28
get keys and after getting the same started following car
driven by deceased. According to him, at some point
deceased went away in high speed leaving behind Shibu in
Scorpio and as he followed the car and came near the place
of incident saw the Ford Endeavour car of deceased parked
on the left side of road and also there was one tempo
traveller. He saw that 10 to 15 persons had surrounded the
car of the deceased and on seeing arrival of Shibu, they
went away in the tempo traveller towards Alappuzha.
42. After the departure of said 10 to 15 persons, the
passenger of Scorpio (Manu) and driver Shibu got down and
noticed deceased lying down in pool of blood. They lifted
him and kept him in Scorpio. They also noticed another
person who was travelling with deceased struggling to get
up from a marshy land slightly away from the spot. Both
Paul and Manu were taken in Scorpio to Medical College
Hospital, Alappuzha. The other friends (accompanying the
deceased) after travelling some distance in another car
suddenly went away in different direction.
WP(C).31031 & 37407/09 29
43. In the hospital Paul was declared dead at about 12.50
and the other injured was admitted to hospital. Thereafter
he is giving the first information and asserted that there
were 10 to 15 young persons and some of them he could
recognize, have murdered Paul.
44. On the basis of this information, the police registered
a case in Cr.No.197/09 at 3 AM on 22.8.2009 for the offences
under Sections 341, 143, 147, 149, 324 and 302 of the
Indian Penal Code. In the column No.7 as to details of
known/suspected/unknown persons – it is noted as 10 to 15
known persons without mentioning single name.
45. It is to be noticed that the conduct and statement of
this first informant himself is highly suspicious and
contradictory to his additional statement recorded again by
police on the very same day. Though he says deceased was
with his three friends throughout night having drinks at two
or three places, he does not know their names, nor does he
know names of any one of the 10 to 15 assailants though
claims to be known to him.
WP(C).31031 & 37407/09 30
46. Of course we are aware that first information is not
an encyclopedia of entire incident. In our view, minimum
truthful statements as to who was in what car, what
happened on the way, why in spite of deceased known to his
driver as heavily drunk and also consuming narcotics was
allowed to drive Ford vehicle along with two other drunk
friends when the driver Shibu was with them are something
mystery. More surprising is the explanation of this witness in
going away from the spot along with one of the drunk
persons at the crucial time for getting some keys which were
not in office and already sent to Pamba Vally resort where
deceased and his friends had already gone and again appear
at the scene after murder is a mystery.
47. It is to be noted that though at earliest point he
states that deceased travelled with two friends, in the
additional statement changes this version and states only
one person went with deceased. The initial version indicates
it was A24 Omprakash and A25 Rajesh went with deceased
and as Manu (CW2) was highly imbibed condition he was
WP(C).31031 & 37407/09 31
directed by Paul to be taken by Shibu in another car. But
now surprisingly at the scene it is Manu who is stated to be
found lying in a marshy land nearby, unable to get up and
with injuries said he suffered during assault on Paul and
stated to be hospitalised. The wound certificate of this
person does not indicate he was dead drunk and alleged
injury on arm is hardly 3 cm x 2 cm nothing more than a
scratch in spite of assertion of the prosecution, he was also
assaulted along with deceased by 10 to 15 persons with
sharp weapons with resultant single scratch. This story
stinks.
48. But what is undigestable is, with this incomplete and
self contradictory story of a person who was with Paul prior
and appears conveniently after assault is over, without
disclosure of names or identity of any of 10 to 15 accused
said to be known to him and with this incomplete material, a
detailed vivid version or story of incident is given by the
Inspector General of Police in a press/media conference
called within hardly 24 hours. The statement given by the I.G
WP(C).31031 & 37407/09 32
practically tallies with the entire prosecution case now
projected in the final report. In our view, the said Inspection
General of Police must be clairvoyant, endowed with
paranormal powers who can disclose not only entire story of
quotation gang unconnected in any way with deceased
which was going for assaulting some body else, getting
enraged by the alleged hit and run case of deceased vehicle
with a motorcyclist little earlier. The I.G has emphatically
stated in the press conference that the attack on deceased
by the accused (members of quotation gang) was due to
sudden provocation (?) given by the deceased in not
stopping his car after hitting a motorcycle and driving and
running away. The press statements indicate as if the
Inspector General of Police is laying a foundation for the
motive and entire future forthcoming prosecution case (fully
said to have been revealed after full investigation for more
than four months. More surprisingly even before postmortem
or recovery of weapon (till then unknown), it is describing as
‘S’ shaped sharp edged weapon. Where from he got this
WP(C).31031 & 37407/09 33
information ? It is a mystery.
49. We do not understand basically what was the need
of such press/media conference arranged. The crime has
taken hardly 24 hours ago. Motive, involvement and identity
of the accused and other details are unknown but still this
Inspector General of Police gives a detailed vivid story of
the entire before, during and after events of the incident.
This press statement is something more than mere
suspicious. In our view, basically such pre-investigating
conferences should be stopped as the secrecy of
investigation is totally lost and accused would be
forewarned or even his defence during trail may be
jeopardised.
50. Nextly, it is to be noted that the Ford vehicle which
the deceased was alleged to have been driving mysteriously
disappears and is found at different places and it is now the
case of investigating agency that the accused A24
Omprakash and A25 Rajesh drove it away to cause
disappearance of the evidence. In the press statement the
WP(C).31031 & 37407/09 34
I.G says even the owner of this Ford is not Paul and name in
records is fictitious and even the documents like RC are
bogus. The investigation materials do not disclose how the
deceased came in possession of this vehicle and was driving
such vehicle.
51. It is also to be noted that the two friends of deceased
who were alleged to be with him A24 Omprakash and A25
Rajesh are known criminals, wanted in several serious
crimes including attempt to murder, murder etc. and
according to driver Shibu, apart from contradictory
statement as to in which car they were travelling, whether
with him or deceased, their conduct that though they were
present all along with deceased, went on drinking bouts and
seen the deceased lying in pool of blood and follow Shibu
towards Alapuzha, suddenly disappear and surface in a court
in Tamil Nadu almost a month later.
52. We find even though they are known criminals
wanted by police, their link with deceased, probability of
their involvement etc. is not at all investigated and whatever
WP(C).31031 & 37407/09 35
explanations offered are unsatisfactory. Even their tracing
and apprehending is also mysterious. According to police,
after about one month, police got information that A24 and
A25 have surrendered in Tamil Nadu case in some other
case and body production warrant is obtained by the Kerala
Police for previous cases and they are brought to Kerala.
53. The learned counsel for petitioner brought to our
notice that an officer of the rank of ACP takes them in
custody, travels with them in a police van for 4 or 5 hours
and produced them at central jail in Kerala. In normal
circumstance, immediately their statements ought to have
been recorded as they were with deceased. But that is not
done. This is most unusual and especially this is not denied
by investigating officer before us. Now surprisingly they are
arrayed as A24 and A25 for the offence under Section 201
IPC for taking away the Ford car from scene of offence. If as
per first information, they were throughout with deceased in
his car and changed car only after incident and in the
background of their criminal record attention of I.O should
WP(C).31031 & 37407/09 36
have been concentrated on them but again unfortunately it
is not done. As such we find again justification in the
suspicion of petitioner about the veracity of prosecution
version so far as the role of these two persons are
concerned.
54. The other factor of investigation in respect of alleged
hit and run case of deceased vehicle with a motorcyclist,
which is projected as motive or atleast starting point of
incident. It is alleged that seeing him injured and because of
deceased’s conduct in not stopping, the accused members of
quotation gang who happen to come to the place of
accident, got enraged, chased car driven by deceased and
killed him is also full of contradictions and grave suspicion,
apart from looking like a film story.
55. According to prosecution, immediately after
motorcycle accident, the injured Biju (CW3) goes to
Nedumudy Police Station and alleged to have given
information of the accident resulting grievous injury to him.
But surprisingly the police do not record his statement or
WP(C).31031 & 37407/09 37
register a case and it is only later as stated by ‘IO’ on
suspicion of that motorcycle accident may have some link
with murder of Paul, he goes to the house of Biju, takes a
complaint and registers a case under Sections 279 and 338
IPC against unknown driver of a black car. Though, according
to him, in first version he saw only a black car hitting his
moving motorcycle from behind at dead night, his being
seriously injured (fracture of shoulder bone), later he even
identifies the make of the car as Ford Endeavour said to
have been driven by deceased as the vehicle which hit him
in dark night that too from behind and sped away. Apart
from this improbable identification even the initial report of
both vehicles motorcycle and Ford Endeavour car indicate
that no major damages at all, indicating the accident story is
improbable, but again, surprisingly some more damages to
the vehicles are added in later mahazars. Moreover though
the accused from quotation gang are said to have been
present as per prosecution, Biju does not even mention
presence of any persons at all even without identification at
WP(C).31031 & 37407/09 38
the time of accident.
56. Similarly, the story of object of quotation gang and
their presence at the scene, their assault on deceased due
to “sudden and grave provocation” etc. appears to be not
only unbelievable but tailor made. In fact the investigation
material as per final report itself discloses that they had
been hired to assault some body that even after the
incident they have not carried or even attempt to carry out
quotation work. There are similar many surprises emanating
from prosecution story which we need not go into details.
Suffice it to say all is not well in the investigation. It is not
mere roving/imaginary suspicion of the petitioner but after
looking into final report we too find shocking state of affairs.
The investigation carried out is suspicious full of many wife
gaps and self contradictory.
57. According to us, we feel that to in order to assure the
victims of heinous crime an assurance of fair, proper,
impartial and complete investigation and to restore faith, it
is just and proper to direct the CBI to conduct investigation
WP(C).31031 & 37407/09 39
particularly when gross allegations are made against
jurisdictional investigating agency justifiable and as such
interest of justice would be better served if CBI investigates
the case.
58. Under these circumstances as has been held by Apex
Court in the case of Rubabbuddin Sheik (supra) we find that
investigation carried out is not fair, it is improper and
incomplete apart from suspicious and tailor made. As such
we find there is justification in petitioner’s contentions to
seek direction from this court for investigation by
independent agency like CBI.
59. According to us, we fell that in order to assure the
victims of heinous crime an assurance of fair, proper,
impartial and complete investigation and to restore faith, it
is just and proper to direct the CBI to conduct investigation
especially when we find gross allegations are made against
jurisdictional investigating agency justifiable and as such in
our view interest of justice would be better served if CBI
investigates the case.
WP(C).31031 & 37407/09 40
60. Before conclusion, it is to be noted that
W.P.(C).No.37407 of 2009 is filed by the State challenging
Exhibit P1 order passed by the learned Magistrate in Crime
No.197 of 2009 on the final report filed by the investigating
agency against 25 accused in this very case. It is contended
by the learned Director General of Prosecution that the
Judicial Magistrate has exceeded his jurisdiction in returning
the final report and directing the investigating agency to file
a correct and complete report.
61. Without going into the correctness or otherwise of
the findings of the learned Magistrate, as to the final report
which has been considered by us in the main matter, in the
light of well settled law that the Magistrate has no
jurisdiction to sift the materials collected during the
investigation, as disclosed in the final report, by holding a
mini trial. As the law is well settled, we find merit in the writ
petition filed by the State and allow the same without going
into the merits.
WP(C).31031 & 37407/09 41
In the result,
1. Writ Petition W.P(C).No.31031 of 2009 is allowed.
Even though final report is filed by local police, we direct
them to hand over all the records to CBI authority, which
shall make independent investigation and complete the
same within six months from the date of taking over the
investigation. The CBI shall investigate the case from all
angles, take assistance of petitioner or his representative
and submit final report to jurisdictional Court. The Registry
shall send copies of this judgment to the Director, CBI and
the Secretary, Ministry of Home Affairs, New Delhi, forthwith.
2. W.P(C).No.37407 of 2009 is allowed quashing
the order impugned therein.
S.R.BANNURMATH,
CHIEF JUSTICE
THOTTATHIL B.RADHAKRISHNAN,
JUDGE
WP(C).31031 & 37407/09 42
vgs.